“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
In December of 1963, as America mourned the assignation of John F. Kennedy, Birch Bayh , the young United States Senator from Terre Haute, Indiana, introduced an amendment to the Constitution aimed at curing its dangerously vague language on vice-presidential succession and presidential disability. One of the many contingencies it aimed to address was, what happens if the President is unable to discharge the powers and duties of his office?
With the recent hospitalization of the current President after his diagnosis of Covid-19, much of the water cooler buzz, the nightly news, and social media was atwitter with questions surrounding the 25th and whether it would be evoked.
Such declarations are rare, but not uncommon. Presidents Reagan and George H.W. Bush each transferred power using 25 during pre-planned surgeries. But while we do not know, as of yet, if the White House counsel drafted language affording the transfer of power to the Vice-President (albeit temporarily) were the President’s health to take a turn, it did get us thinking that such a document could be akin to the most important Power of Attorney in the world.
In Ontario, the subject of a living will often comes up in similar circumstances. But the term “living will” is not used in any formal way. We have written about living wills here in the past. A more common term is advance directive: a document that clearly outlines your treatment and personal care wishes.
But whether you call it a living will or advance directive, they are not the same as a Power of Attorney (POA): a legal document in which you name a specific person to make decisions on your behalf. While an advance directive can form part of your POA for personal care, so your attorney is aware of your wishes, it does not carry the same weight with the court.
Finally, while we may not know whether the president executed a document under the 25th Amendment or if one was even drafted, it is a good reminder that even if our own illness or temporary absence does not pose a national security risk, outlining our wishes about care is always a capital idea.
Thanks for reading.
Ian Hull and Daniel Enright
Recent reports suggest that divorce and separation rates are on the rise during the pandemic (with rates of separation cited as having increased as much as 20% to 57% from last year, depending on the jurisdiction). This has been in part attributed to the stresses of lockdown and worsening financial situations.
Many Canadians may not be fully aware of the legal impact that separation and divorce have upon an estate plan, mistakenly believing that there is no real difference between marriage and a common-law partnership. However, the distinction in Ontario remains important from an estate planning perspective – for example:
- A common-law or divorced spouse does not have any automatic rights upon the death of a spouse who does not leave a will, whereas married spouses take a preferential share and additional percentage of a predeceasing married spouse’s estate on an intestacy;
- A married spouse has the right to elect for an equalization of net family property pursuant to the Family Law Act on death, whereas common-law spouses have no equalization rights on death;
- Marriage automatically revokes a will (unless executed in contemplation of the marriage), whereas entering into a common-law relationship has no such impact; and
- Separation (in the absence of a Separation Agreement dealing with such issues) does not revoke a will or any gifts made to a separated spouse, whereas gifts under a will to a divorced spouse are typically revoked and the divorced spouse treated as having predeceased the testator.
While top of mind for estate lawyers, lawyers practising in other areas of law and their clients may not necessarily turn their minds to the implications that separation and divorce may have on an estate plan, particularly soon after separation and prior to a formal divorce. With the potential for family law proceedings to be delayed while courts may not yet be operating at full capacity, combined with elevated mortality rates among certain parts of the population during the pandemic, it may be especially worthwhile in the current circumstances to remind our clients of the importance of updating an estate plan following any material change in family circumstances, including a separation or divorce.
Thank you for reading and stay safe,
In Ontario, a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care must be signed by two witnesses. As our readers also know, as a result of COVID-19, witnessing and execution requirements for Powers of Attorney in Ontario have been relaxed to facilitate access to incapacity planning during the pandemic. These provisions have recently been extended to November 21, 2020. Provided that one witness to a Continuing Power of Attorney for Property or Power of Attorney for Personal Care is a licensee under Ontario’s Law Society Act, the document may be witnessed using audiovisual communication technology and signed in counterpart. The document does not otherwise need to be witnessed by a lawyer (although, where a lawyer has assisted in the preparation of Powers of Attorney, it will often be most practical for the lawyer and one of his or her staff to witness the client’s execution of the document).
Especially in light of social distancing measures, it is important to keep in mind the restrictions on who can witness incapacity planning documents. In Ontario, neither a Continuing Power of Attorney for Property nor a Power of Attorney for Personal Care can be witnessed by:
- the attorney or the attorney’s spouse;
- the grantor’s spouse;
- a child of the grantor;
- a person whose property/personal care is under guardianship; or
- an individual of less than eighteen years old.
If the lawyer him or herself is being appointed under the document, which is not an uncommon practice, the involvement of a second lawyer or a paralegal in the virtual execution and witnessing of the document(s) may be necessary.
In the Yukon, the witnessing requirements for Powers of Attorney are somewhat different. As it currently stands, in order for a Continuing Power of Attorney for Property (there referred to as an Enduring Power of Attorney) to be effective, a Certificate of Legal Advice must be provided by a lawyer. As a result, the lawyer typically witnesses the Power of Attorney, which is not otherwise valid. While only one witness is required, the lawyer providing the Certificate cannot be the attorney or the attorney’s spouse.
A recent article from Canadian Lawyer reviews proposed changes to Yukon’s Enduring Power of Attorney Act. One of the key amendments is the replacement of the requirement that a lawyer be involved in witnessing the execution of Continuing Powers of Attorney for Property with the option of the witnessing of such documents by two other individuals. Similar to the requirements in Ontario, a witness must be an adult and cannot be the spouse of the donor, the attorney, or the spouse of the attorney.
If approved, the recent Yukon Bill will eliminate the necessity that a lawyer be involved in the witnessing of Powers of Attorney to increase access to incapacity planning throughout the territory.
Thank you for reading.
The importance of regularly updating your will cannot be understated. A prudent individual should review their will upon significant life changes. An article on Forbes suggests that one’s estate plan should be reassessed at least every five years. A change in finances, the law or personal circumstances, such as marriage, divorce or a change in relationships, should prompt a review even sooner.
Covid-19 sparked a change in many people’s daily lives and personal attitudes. While death is not something pleasant to consider, Covid-19 has made many people more conscious of their own vulnerability and mortality. There is a psychological theory that describes this notion – Terror Management Theory. This phenomenon examines how people respond when death is made salient to them. In their book, The Worm at the Core, Sheldon Solomon and his colleagues explain how the Terror Management Theory begins with the notion that human beings have an innate need to survive, like other living organisms. However, while other organisms lack the intellectual ability to understand their impermanence, human beings do not. Perhaps as a result of heightened death awareness spurred by Covid-19, estate planners were flooded by clients rushing to update (or create) their estate plans at the beginning of the pandemic.
As students in the GTA return to school, we are again seeing a steady and concerning increase in Covid-19 cases. Ontario Education Minister, Stephen Lecce, expressed concerns of a possible second wave of the virus in conjunction with flu season. It is important for individuals to again reconsider whether their personal circumstances have changed in a significant way and to review their estate plans to ensure they are sufficient and up to date. It is crucial that Canadians do not succumb to “pandemic fatigue.”
Thanks for reading!
Ian Hull & Tori Joseph
On today’s podcast, Rebecca Rauws and Garrett Horrocks discuss the execution of Wills in the midst of COVID-19, and how the emergency measures introduced this year may impact how Wills are executed in the future. The Globe and Mail article mentioned by Garrett and Rebecca during the podcast can be found here.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
A recent decision of the Federal Court provides detailed instructions for proceeding with a virtual trial.
- the technology to be used;
- document management;
- counsel preparation to ensure they have the required hardware and software;
- witness preparation with respect to hardware, software;
- testimony protocols, including camera positioning, access to documents, and who can be present;
- how documents are to be put to a witness;
- what is to happen if there is a loss of internet connection;
- how objections are to be raised and dealt with;
- how the principle of “open courts” is to be addressed;
- testing of the systems before trial;
- access to Zoom “chat” functions.
The Direction also includes a schedule entitled “Information for Witnesses” which summarizes part of the Direction, and is to be provided to witnesses in advance of their testimony.
The decision is not a “Practice Direction” applicable to all virtual trials. However, it is comprehensive and should be considered by the parties and the trial judge in a case conference prior to the commencement of any other trial.
Justice Lafreniere begins the Direction by setting out the balancing act that the courts must engage in when dealing with trials during these COVID times. “The Court recognizes the importance of reducing the spread of COVID-19 and prioritizes the health and safety of all court participants, including members of the Court, registry staff, counsel, witnesses, stenographers and interpreters. At the same time, the Court must balance the need to maintain judicial operations. Bearing in mind these important factors, it has been ordered that the hearing of this trial continue remotely via videoconference.”
The show must go on. Albeit with a very different script.
Thank you for reading.
The presence of COVID-19 in Canada has been felt through all communities, but those living in long-term care facilities have been most significantly affected. The virus’s exponential infection rate, coupled with the pre-existing medical conditions of many of those who reside in these care facilities, has resulted in high death rates and little insight on how best to protect the elderly community going forward.
On May 19, 2020, Premier Doug Ford announced the Ontario Long-Term Care COVID-19 Commission (the “Commission”) in response to the devastating impact COVID-19 has had on residents and staff of long-term care homes.
The Commission has a mandate to investigate the spread of COVID-19 in long-term care facilities, the adequacy of efforts taken by the facilities to prevent transmission during the first wave of the pandemic, and how various elements of the existing system may impact the spread of COVID-19 within long-term care homes. The commission aims to provide recommendations to the government regarding the health and safety of residents and staff of these facilities and how to better protect them from potential outbreaks in the coming months.
The establishment of the Commission emphasizes the need for quick and decisive action in response to the virus’s overwhelming effect on Ontario’s elderly population. Though the virus’s impact remains prominent at this time, a second wave of COVID-19 is anticipated in the coming months. Consequently, the Commission will work diligently to provide the government with a final report by April 30, 2021.
Three commissioners will lead the investigation. The Honourable Justice Frank N. Marrocco was appointed as Chair of the Commission. Associate Chief Justice Marrocco has been involved in high-profile matters in the past, including as the lead counsel for the Province of Ontario in the Walkerton inquiry. Justice Marrocco was appointed to the Superior Court of Justice in 2005. Angela Coke and Dr. Jack Kitts will accompany Associate Chief Justice Marrocco on the Commission.
Angela Coke is a former senior executive of the Ontario Public Service (OPS), where she spent 27 years committed to the transformation of government operations. Ms. Coke retired in 2017, having previously served as the Deputy Minister, Ministry of Government and Consumer Services, where she played a leadership role on a range of government and public service priorities.
Dr. Jack Kitts completed a three-year tour of duty as a medical officer in the Canadian Armed Forces. He later returned to school for specialty training in anesthesia. In 1995, he was appointed Chief of Anesthesia and Associate Professor at the University of Ottawa. Within three years, he was appointed Vice-president of Medical Affairs and led the medical staff through a large restructuring, in which three hospitals and five large programs merged into the Ottawa Hospital.
Given the qualifications of the members of the Commission and the importance of taking any possible steps to protect the lives of residents of Ontario’s long-term care facilities, the creation of the Commission appears to be a promising first step in implementing necessary measures to enhance the ability of long-term care facilities to adequately respond to the pandemic and to protect their residents and staff once the current health care crisis has passed.
Thank you for reading!
In response to the COVID-19 pandemic, the Ontario government enacted O. Reg. 129/20 (the “Regulation”), which allows for the remote execution of wills and powers of attorney using video conferencing and counterpart. The Regulation was effective as of April 22, 2020 and was recently extended until September 22, 2020.
In light of the above, we can presume that many of the wills executed over the past five months were done using video conferencing. According to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, the Regulation may be extended by further orders up to July 24, 2021. Thus, it is possible that the remote execution of wills may continue in the weeks to come.
As with all client meetings, the execution of a will using video conferencing should be well-documented. In most cases, the attendees of a video conference have the option to record both the audio and visual of the meeting. Thus, those who seek a more comprehensive account of the virtual meeting might consider recording the video conference. For information on the benefits and risks of recording client meetings using virtual communication technologies, such as a will signing by video conference, you can visit the Law Society’s COVID-19 Practice Management FAQs.
In the event of a challenge to the will, any video recording of the will signing that may exist will likely be producible documentation. This recording has the potential to be a crucial piece of evidence in the dispute. First, the recording can be used to show that the requirements for due execution of the will have been complied with. To the extent that the testator commented on the dispositions made in their will during the will signing meeting, the video recording may also assist in confirming the testator’s wishes and providing a rationale for their testamentary choices. A video recording could also help demonstrate that the testator was of sound mind at the time they signed their will.
However, it is also important to note that any video recording of the will signing will probably be heavily scrutinized by the person challenging the will. Any behaviour displayed by the testator that could be perceived as hesitation, uncertainty, forgetfulness, or misunderstanding could potentially be used to undermine the validity of the will. As such, depending on the idiosyncrasies of the testator, and how they react to being on camera, retaining a video record of the execution of the will might not be especially helpful in warding off challenges to the will.
Thanks for reading!
Needless to say, this has been an unprecedented summer. COVID-19 has wreaked havoc on just about everything and everyone. Now, as summer winds down, we face an equally unprecedented and indefinite fall and winter.
This week would have been the opening of the Canadian National Exhibition: the true harbinger of the end of summer.
Before summer ends, be sure to enjoy whatever summer experiences you can, before it is too late.
For example, earlier this week, I learned that the corpse flower was in bloom at the Metro Zoo. Nicknamed “Pablo ‘Pe-ew’caso”, the Zoo’s specimens of the corpse flower, or amorphophallus titanium, also known as the titan arum, blooms for only a short time (8 to 36 hours) every year. The plant usually doesn’t bloom for the first 7 to 10 years of its life, and thereafter may only bloom every few years. The plant can reach a height of over 3 m. The plant attracts bugs for pollination by giving off the smell of rotting meat or a rotting corpse, hence the common name. The red colour of the flower contributes to the illusion of meat.
A time-lapse video of the plant blooming can be found here.
Alas, I was too late, and missed it.
Make the most of the rest of your summer. Enjoy an Ontario peach. It is going to be a long, long fall and winter.
Thanks for reading.
On Thursday August 6, 2020 the Province of Ontario Attorney General, Doug Downey, was part of a virtual discussion with members of the bar regarding legal policy and possible legislative changes. One of the topics was whether to make permanent the provisions of the coronavirus pandemic emergency order for witnessing of Wills and Powers of Attorney virtually, utilizing electronic means.
Similar discussions are taking place across Canada as a consequence of the coronavirus emergency and measures requiring action by the government. In the Province of British Columbia Attorney General, David Eby, introduced Bill 21 on June 22, 2020 called the Wills, Estates and Succession Amendment Act, 2020. The proposed British Columbia legislation would make permanent the provisions on virtual witnessing of wills and goes further to allow electronic wills. The British Columbia government states: “The changes will benefit British Columbians who, for example, have a disability, are quarantined, live in rural or remote communities, or would have difficulty attending a lawyer’s or notary’s office due to child care or other responsibilities.” The changes: “will enable the courts to accept wills that are created on a computer and signed electronically, and for which there is no printed copy.” The proposed British Columbia legislation includes:
“electronic form”, in relation to an electronic will, means a form that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of being reproduced in a visible form;
“electronic signature” means information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record;
“electronic will” means a will that is in electronic form.
The proposed draft legislation in entirety can be read here.
This is now a rapidly changing area of the law. There will certainly be more developments across Canada that we will be following for you.
Thank you for reading!